91 F.

3d 645

Freddy M. LONG, Guardian of the Estate of and person of

Gilbert Venoy Long, Plaintiff-Appellant,
v.
Charles G. SASSER, M.D.; J. Wilson, III, M.D., DefendantsAppellees.
No. 95-2947.

United States Court of Appeals,

Fourth Circuit.
Argued June 5, 1996.
Decided Aug. 2, 1996.

ARGUED: Thomas Phillip Mains, Jr., Mains & Mains, L.C., Alexandria,
Virginia, for Appellant. Steven Wayne Ouzts, Turner, Padget, Graham &
Laney, P.A., Columbia, South Carolina, for Appellees.
Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and
MACKENZIE, Senior United States District Judge for the Eastern District
of Virginia, sitting by designation.
Affirmed by published opinion. Chief Judge WILKINSON wrote the
opinion, in which Judge MICHAEL and Senior Judge MACKENZIE
joined.
OPINION
WILKINSON, Chief Judge:

Appellant Freddy M. Long brought this medical malpractice case on behalf of

his ward, Gilbert Venoy Long, alleging federal jurisdiction based on diversity
of citizenship. After Gilbert Long suffered a serious stroke, Freddy Long
moved him to a nursing home in Virginia. Finding that the stroke rendered
Gilbert Long incapable of possessing the intent to establish a new domicile in
Virginia, the district court held that Long retained his previous South Carolina
citizenship. As both Gilbert Long and the defendant physicians were citizens of
South Carolina, the district court dismissed the case for lack of subject matter

jurisdiction. We now affirm.

I.
2

On March 6, 1992, when a citizen and resident of South Carolina, Gilbert

Venoy Long arrived at the emergency room of Conway Hospital complaining
of weakness in his right side. Long was admitted to the hospital and then
suffered a stroke while in the care of appellees, Dr. Charles G. Sasser and Dr. J.
Wilson, III.

Long's family had him transferred first to Duke University Medical Center and
then to HealthSouth Rehabilitation Center in Florence, South Carolina. Upon
Long's discharge from HealthSouth, appellant, a Virginia resident, moved him
to a nursing home in Virginia.

Freddy Long filed suit in South Carolina federal court on behalf of his ward. He
alleged appellees committed medical malpractice in the treatment of Gilbert
Long while he was at Conway Hospital. Freddy Long asserted federal
jurisdiction based on diversity of citizenship. He alleged that he and his ward
were both residents of and domiciled in Virginia. The parties agreed that Dr.
Sasser and Dr. Wilson were citizens of South Carolina.

In July 1995, the two physicians filed a motion to dismiss alleging a lack of
diversity. On September 12, 1995, the district court dismissed the case for lack
of subject matter jurisdiction, finding that Gilbert Long had never changed his
original South Carolina domicile and that the parties therefore were all citizens
of South Carolina for diversity purposes.

II.
6

Appellant contends that the district court erred in concluding that Gilbert Long
was domiciled in South Carolina, asserting that Long had the capacity to form,
and did in fact form, the intent to establish a Virginia domicile. We believe,
however, that the record clearly supports the district court's finding that Gilbert
Long lacked the requisite mental capacity to change his domicile. We further
conclude that the need for clear jurisdictional rules and the absence of
traditional diversity concerns in this sort of case all support affirmance.

A.
7

The question of citizenship for purposes of diversity jurisdiction is ultimately

one of federal law, Ziady v. Curley, 396 F.2d 873, 874 (4th Cir.1968), although
federal courts may consult state law in making a decision, Rodriguez-Diaz v.
Sierra-Martinez, 853 F.2d 1027, 1030 (1st Cir.1988). As the legal
representative of Gilbert Long, Freddy Long shared the citizenship of his ward
for the purpose of determining the existence of diversity. 28 U.S.C. 1332(c)
(2). It is readily apparent that Gilbert Long was a citizen of South Carolina for
the purpose of establishing diversity jurisdiction. That conclusion is compelled
by Foster v. Carlin, 200 F.2d 943 (4th Cir.1952), where we held that:
8

One who has been adjudged incompetent may change his domicile if, but only
if, he has, since the adjudication of incompetency, acquired sufficient
understanding and mental capacity to make an intelligent choice of domicile.
After such adjudication, the burden of proving the subsequent acquisition of
sufficient mental capacity is plainly on him who alleges it.

Id. at 946 (citing Coppedge v. Clinton, 72 F.2d 531 (10th Cir.1934) and
McCampbell v. McCampbell, 13 F.Supp. 847 (W.D.Ky.1936)).

10

It is uncontested that, prior to his stroke, Gilbert Long was domiciled in South
Carolina. In addition, the record amply supports the district court's conclusion
that Gilbert Long lacked the capacity to form any intent to establish a new
domicile in Virginia. Dr. Sobhany, Gilbert Long's physician, stated in an
affidavit that Long's stroke left him "completely mentally and physically
incapacitated and unable to understand or conduct his affairs." This assessment
was corroborated by the testimony of Gilbert Long's wife and children and a
personal friend. Even if Gilbert Long retained some capacity for
comprehension, his son John testified that his father did not participate at all in
the decision to move him to Virginia. Accordingly, because Gilbert Long was
incapable of changing his domicile, his domicile remained in South Carolina,
Anderson v. Watt, 138 U.S. 694, 706, 11 S.Ct. 449, 452, 34 L.Ed. 1078 (1891),
and he remained a citizen of South Carolina for diversity purposes, Gilbert v.
David, 235 U.S. 561, 568-69, 35 S.Ct. 164, 166-67, 59 L.Ed. 360 (1915).

11

All parties being citizens of South Carolina, the district court properly
dismissed the complaint for lack of jurisdiction.

B.
12

Appellant urges us to abandon the rule of Foster v. Carlin and adopt the
approach of the Tenth Circuit in Rishell v. Jane Phillips Episcopal Memorial
Medical Center, 12 F.3d 171 (10th Cir.1993). Rishell permits a guardian acting

in the best interests of a permanently incompetent ward to change the domicile

of that ward:
13

If the best evidence available shows the incompetent likely will never be
restored to reason, the law must allow another, vested with legal authority, to
determine domicile for the best interests of that person. To prohibit such
determinations is to leave the incompetent in a never-ending limbo where the
presumption against changing domicile becomes more important than the
interests of the person the presumption was designed to protect.

14

Id. at 174.

15

We are not inclined to disturb the rule of Foster. Jurisdictional rules should
above all be clear. They are meant to guide parties to their proper forums with a
minimum of fuss. While close cases may arise under Foster regarding whether
the ward possessed the necessary capacity to effect a change of domicile,
Rishell requires a more speculative inquiry as to whether the ward will remain
incompetent in the future, as well as inviting litigation over the "best interests"
of the ward. See Rishell, 12 F.3d at 174 ("Most critical to the paradigm we have
posed is the best interest of [the incompetent ward].").

16

Inquiring whether the "best interests" of the ward are served by a guardian's
attempt to effect a change in domicile to secure a federal forum strikes us as
singularly unproductive. We note, for example, that this case does not raise the
primary concern addressed by diversity jurisdiction--fear of local bias against
litigants from out of state. This is essentially a local dispute; Gilbert Long was a
resident of South Carolina for many years prior to his stroke, and the doctors
who treated him were South Carolina doctors. We see no reason to believe that
this case will not receive a fair hearing before a South Carolina court.*

III.
17

For the foregoing reasons, we affirm the judgment of the district court.

18

AFFIRMED.

The district court specifically found that the South Carolina statute of
limitations for medical malpractice claims would not prevent appellant from
bringing the case in state court. Defendants stipulated that the statute of
limitations had been tolled due to Gilbert Long's incompetency, providing

Freddy Long with ample time to refile the action in the South Carolina Court of
Common Pleas